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An analysis of why the Board punted: NLRB declines to assert jurisdiction over Northwestern football players

Ever since football players at Northwestern University sought union certification in January 2014, their case has been closely watched by many in both the labor and sports arenas. After a March 2014 ruling by a Regional Director of the National Labor Relations Board’s (NLRB or the Board) stating that the athletes were employees, Northwestern filed a request for review with the full NLRB, contending that scholarship players are not statutory employees. On August 17, 2015, a unanimous Board concluded that it should decline jurisdiction over the football players’ underlying petition because resolution of the question presented—whether the players are statutory employees—would not effectuate the purposes of the National Labor Relations Act (the NLRA or Act). The Board thereby sidestepped the controversy raised by the Northwestern players’ case, and expressly left for another day whether—and under what circumstances—intercollegiate athletes might be considered statutory employees under the Act.

The basic facts of the case are fairly undisputed. Northwestern, a member of the NCAA, has 112 athletes on its football team, 85 of whom receive grant-in-aid scholarships valued at roughly $61,000 per year. The scholarships cover tuition, fees, room, board, and books. The players contended that this scholarship money amounted to pay for performance of their obligations as football players. Northwestern disagreed and contended that, among other things, the players are not employees because the scholarship money is never directly provided to the athletes, and, thus, they are not paid for performance.

On plenary review, the Board adopted the view of some amici that the Board should not exercise jurisdiction. As the Board explained:

because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of FBS football (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction), it would not promote stability in labor relations to assert jurisdiction in this case.

In other words, given the Board’s inability in a case brought by only one school’s scholarship football players to reach an entire conference or sport (let alone the NCAA writ large), ruling on the employment status of the Northwestern football players specifically would not promote the “uniformity” and “stability” between workers and management that are the goals of the Act.

In reaching this conclusion, the Board emphasized the unique circumstances of the case and gave a hint as to how it might have ruled had it exercised jurisdiction. To that end, the Board observed that college players do not “fit into any analytical framework that the Board has used in cases involving other types of students or athletes.” In this regard, the players do not resemble other types of students that the Board has previously concluded are employees, such as graduate student assistants or student janitors. Instead, the fact that the scholarship students are also athletes receiving a scholarship in what has been traditionally classified as an extracurricular activity “materially sets them apart from the Board’s student precedent.”

The Board did, however, leave open the possibility of asserting jurisdiction in other areas of college athletics, such as petitions from coaches, employees who work at sporting events, and referees. Indeed, the Board noted that “[o]ur decision today should not be understood to extend to university personnel associated with athletic programs.” It also left open the possibility regarding a possible conclusion that all FSB scholarship athletes from private universities are employees. As the Board stated: “The record before us deals solely with Northwestern’s football team and, in the absence of any evidence concerning the players and athletes at other schools, we do not decide any issues about them today.” The Board further stated that it might exercise jurisdiction at a later date “if the circumstances of Northwestern’s players or FBS change such that the underpinnings of our conclusions regarding jurisdiction warrant reassessment.” In the context of one petition by players on one team at one private university, however, the Board elected to stay its hand.

The ruling is clearly a major victory for the NCAA, which has been facing a number of legal battles as of late. As part of its legal troubles, the NCAA recently cleared the way for five of its biggest conferences to add player stipends to help athletes defray some of their expenses. Southeastern Conference schools, for example, will give some athletes $3,000 to $5,500 each on top of a scholarship that pays for tuition, room, board and books—a move that may further complicate the NLRB’s future analyses of the employment question presented in the Northwestern case. But, at least for now, the NCAA will not have to face the question of whether its student-athletes are statutory employees, and the players are Northwestern will not have the opportunity to form a union.

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